Course 13 Flashcards
1
Q
What is inhuman or degrading treatment?
A
- Inhuman or degrading treatment or punishment: also sometimes used “cruel” (US constitution):
- Remarkably for decades, the ECHR applied art. 3 without saying what was meant by it.
- Grand Chamber case: Case of Tanase v. Romania (2019): it has to be an intentional act so if it was a mere accident (eg. Traffic accident), that has nothing to do with art. 3 of the European convention.
- Level of severity: a minimal level has to be reached.
- This depends on the circumstances: duration of the treatment, physical and mental effects, the sexes, age, state of health of the victim. Also the purpose of the ill treatment, it is not necessary that the ill treatment must be inflicted with the purpose of hurting an individual but it is a very important element. Generally: when the victim is not in a vulnerable state: eg. People detained who have just arrived = ill treatment.
2
Q
Is there a difference between inhuman treatment and degrading treatment?
A
- Not so easy to distinguish: inhuman treatment usually entails some actual bodily injury or intense physical suffering = it hurts. Degrading treatment is more about humiliating, doing things that are against human dignity = principle that underlies the whole convention and certainly art. 3 when it is about the prohibition of degrading treatment.
3
Q
What is torture under art. 3?
A
- Development in the case law, prompted by developments in international human rights law.
- Torture is not simply inhuman or degrading treatment. Under the European convention, there are not really legal consequences attached to notion of torture. There are certain legal consequences attached to torture and to torture only in other human right treaties, but not in article 3.
- Nevertheless, sometimes the court will specify that it is in fact torture = special stigma and it says a lot about that state that has inflicted that treatment. States really want to avoid this.
4
Q
What was the case Ireland vs. UK?
A
- One of the first cases of the ECHR: techniques that had been used by the British army against the IRA from Northern Ireland: ECHR held that it must be about the degree of intensity of suffering and torture then is ill treatment causing very underlined, very serious and cruel suffering. It’s about the most cruel suffering that you can imagen. That would be torture.
5
Q
What are the elements for an act to constitute torture?
A
- But torture is more than that: 3 elements for an act to constitute torture in the UN Convention against torture:
- Severe pain or suffering = physical or mental suffering.
- Ill treatment must be inflicted with a certain purpose = aim plays a role: eg. In order to obtain a confession from that persons. Also ill treatment in order to intimidate. Not only to that person, but also those who are close to that person who might have information.
- Acts of torture must be committed by a public official: this is not relevant for art. 3 but the UN convention limits the scope of application to state actors = part of the scope of the protection, scope of the application that is offered.
6
Q
What was the case Selmouni vs. France?
A
- Case Selmouni vs. France: first time where the European Court could pronounce itself on the issue so interesting to see if they would follow the United nations. This was a case about a drug dealer that was detained. The court noted 2 things:
- Acts were sufficiently serious to qualify as torture
- The acts had been inflicted upon the applicant in order to obtain a confession = essential element.
- So conclusions from this short overview is that while the European court had a rather restricted view on what constituted torture because of this united nations conventions against torture, it finally adopted a wider definition of what constituted torture is.
- Treatment of vulnerable persons in need of special protection.
7
Q
What are the negative obligations when it comes to art. 3?
A
The obligation not to commit acts of torture or other ill treatment = ill treatment covers inhuman treatment and torture. This is an absolute prohibition: Article 3 enshrines one of the most fundamental values, ill treatment cannot be justified. So this is not like art. 8 or art. 10 where there are interferences possible when they are provided by law, when there is a legitimate aim and when they are necessary to achieve that legitimate aim. This is not the case for art. 3. Once it has been established = inhuman or degradation torture article 3 is violated.
- This means: no margin of appreciation because this can only be accepted where a state has choices to be made.
- Cases involving expulsion of people who were suspected of being terrorists and the countries wanted to send them back as soon as possible but the ECHR has developed a case law:
- State cannot remove a person from her own country to another country where person runs a real risk of having to undergo ill treatment prohibited by article 3.
- Some states try to claim that this not apply to the terrorists because it is their own fault but the ECHR says no: this is an absolute prohibition, regardless of the conduct of the person: states may not violate art. 3 for whatever reason they invoke.
8
Q
What is the ill treatment by state agents?
A
- Ill treatment by state agents or state bodies: this is the negative obligation of states positive obligation can be by one individual by another individual.
- First category: ill treatment by police and security forces:
- All MS of the Council of Europe are regularly confronted with these issues.
- Case Selmouni vs. France: he said that he had been subjected to various forms of ill treatment, hit, urinated on, kneeled down. He was examined by doctors and there had been signs.
- Court:
- When someone enters a police office, he will be under control of public authority. If he comes in healthy and enters with injuries = presumption that something has happened while he was under control of the authorities and then it is up to authorities to offer a plausible explanation.
- Court found here that the facts had been sufficiently proven that there was in fact inhuman and degrading treatment inflicted upon the individual.
- When someone enters a police office, he will be under control of public authority. If he comes in healthy and enters with injuries = presumption that something has happened while he was under control of the authorities and then it is up to authorities to offer a plausible explanation.
- Question: does this constitute torture?
- Court indeed came to the conclusion that Mr. Selmouni had been subjected to acts of torture.
9
Q
What is the case El Masri?
A
Another Case: El Masri vs. Former Yugoslav Republic of Macedonia:
- Man who was arrested when he arrived in Macedonia and arrested by the CIA and he was brought to Afghanistan where he was further tortured but it was a complete mistake and they dropped him somewhere in Albania = case is mostly about that secret rendition.
- Also short episode about the ill treatment by police officers in Macedonia.
- European Court: Macedonian authorities knew or ought to know what would happen to mr. Masri when he would be taken over by the American authorities and they did not ask for assurances (how could they as such a little country so theoretical).
- Still violation of art. 3 because this extraordinary rendition outside the legal framework is outside the legal framework.
10
Q
Case Bouyid vs. Belgium?
A
- Case concerned an allegation by two brothers, one of whom was a minor at the time, that two police officers had slapped them in the face while they were under the officers’ control at their family’s local police station in the district of Saint-Josse-tenNoode (Brussels). Violation of Article 3 in that they had been subjected to degrading treatment Violation of Article 3 as the applicants had not had the benefit of an effective investigation.
- Controversial case: the man is slapped in the face and they bring a case against the investigator and the criminal complaints are discontinued because of the lack of evidence of a criminal offence.
- ECHR: examines the case from the point of view of the substantive obligation of the state not to inflict ill treatment on individuals but also from the point of view from the procedural obligation to investigate an incident and there is an arguable claim that article 3 has been violated.
- Court adopts a very strict attitude: whenever a person is confronted with law enforcements, any use of force that is not strictly necessary by the conduct of the individual concerned, must be considered as diminishing human dignity, and is therefore an infringement of article 3.
- Question here: is the level of severity met in this case? ECHR: any physical violence must be considered a violation of art. 3 when it comes to the public authorities.
- You always need to check whether the violence has reached the degree of severity normally, unless you are dealing with violence committed by state agents = always a violation of art. 3 = zero tolerance for violence.
- Expectation by ECHR: police officers are sufficiently trained on how to deal with such situations.
11
Q
Case MSS vs. Belgium and Greece:
A
- Case about an asylum seeker who had entered Europe in Greece and he was sent back by the Belgian authorities to Greece, where his asylum request would have to be examined. He complained against both Belgium and Greece because the conditions there were terrible and also complaint against Belgium because they had exposed him to these conditions. The authorities knew but they were unable or unwilling to do anything or to offer a dignified way of living.
- Court found that he suffered a degrading treatment from the Greek authorities.
- This does not necessarily mean that asylum seekers should receive gracious treatment from the national authorities: case Hunde vs. the Netherlands.
12
Q
Case Hunde vs. the Netherlands?
A
- About an undocumented migrant who stayed in the Netherlands while he was under the obligation to leave the country: illegal. He complained that he had received zero assistance from the Dutch authorties.
- Court: adopts a different view than in the MSS case: art. 3 does not contain an obligation for states to provide free and unlimited health care to anyone living or staying on the territory. Mr. Hunde refused to leave, there was no obstacle for him to return to Ethiopia.
- The court also noted that if there was a medical emergency, Mr. Hunde would have received received free medical treatment, but such a situation did not arise in this case. So the Court found, that the Dutch authorities did not fall short under their obligations under Art 3.
13
Q
What is the third category of art. 3?
A
Leading case about overcrowded prison cells where the Court sets out some general principles with regard to average number of square meters of each of these detainees:
- and if that is less than 3 sqm per detainee, then there is a strong presumptions that Art 3 is violated; that this is against the dignity of prisoners, unless there are strong compensating factors.
- If a detainee has a personal space between 3 and 4 sqm, then there must be some aggravating circumstance before the Court will conclude that there is violation of Art 3.
- And when each detainee on average has more than 4 sqm in a cell; detention cell, the presumption is, that Art 3 has not been violated. But of course, there may be still specific elements, that might bring the Court to concluded, that there is violation.
This is now the scheme that has been apply consistently by the European Court in a number of other cases.
14
Q
Case of Bamouhammad v Belgium from 2015
A
- Very dangerous prisoner who had some various serious psychological problems “Farid Le Fou”: acted very violently and the consequence was that he was transferred from prison to prison.
- Court found that he was not treated, no psychological supervision because he was never long enough in prison to receive protection. And actually the Court noted, that all sorts of expert reports; that this person should not be in a prison; this is the worst thing you can do to him and he will do terrible things as long as he is an prison. So this went completely wrong; the authorities did not look for alternatives. There was here degrading treatment and a violation of Art 3.
15
Q
Clasens vs. Belgium
A
- Walloon prison and there was a strike in the prison so the prisoners were guarded by soldiers and they could not receive visitors and could also not come out their cells.
- European Committee for prevention for Torture visited Belgium prisons and said this is a horrible situation, we have not seen before in any other prisons. Prisoners are so neglected; they were not looked after. Also Belgian courts had ordered the Belgian state to act but the Belgian minister of justice was unable to act.
- So after weeks an agreement was reached but there was a violation of art. 3: a degrading treatment inflected on the prisoners.
- Belgian students may know, that already before this judgement was handed down, a law was adopted, an act of the 23 of March 2019, which provides for the minimum services to be guaranteed at any moment in prisons and to maintain such a minimum service. The authorities now have also the power to order specific staff numbers to return to their work place.
